How Not to Practice

When a court orders you to meet and confer with opposing counsel about a discovery dispute, it requires you to do “something more than bickering with [opposing] counsel ….” That’s what a California state appeals court noted in affirming $12,600 in sanctions against a defendant represented by a large national firm. According to the opinion, a partner of the firm was uncivil, patronizing and condescending to the plaintiff’s counsel. The court cited the transcript of the meeting.

The court didn’t consider any ethics rules in making its ruling; but the case is still a reminder about professional conduct, including Model Rule 3.4(d) (failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party), as well as professionalism guidelines that your jurisdiction may have adopted, as my home state of Ohio has in its Lawyer’s Creed, for instance.

Discovery standoff

The sanctions came in a case alleging labor law violations, brought under California’s Private Attorney General Act. The plaintiff was seeking discovery about other former and current employees of the defendant company; she asserted that in a wage-and-hour representative action she was entitled to the identities of other possible “aggrieved employees.” The defendant refused to respond to any discovery about such employees.

In a 14-page meet and confer letter, the plaintiff explained her position. To address the defendant’s stated concerns over the privacy of other employees, she proposed an opt-out process developed through prior California case law in representative actions. The defendant responded with a two-page letter, refusing to budge.

The plaintiff filed motions to compel and requested monetary sanctions; the defendant’s response relied heavily on a case that on its face supported its position, but which had been de-published and lacked any precedential effect.

Before ruling on the motions to compel, the court ordered the lawyers to meet and confer, and that’s where things got hot, “quickly [becoming] contentious,” as the court said.

A contentious meeting

During the meeting, defense counsel said that opposing counsel’s arguments were “idiotic,” and that she had “lost it;” he interrupted her “multiple times,” and patronized her with comments like “if there’s something you don’t understand about what I’m saying, tell me so I can try to clarify it for you.” He told her that questions she asked him “made no sense,” and he “taunted” her. He refused to negotiate for even minimal discovery, although plaintiff’s counsel offered to compromise on the scope of her client’s request.

In sum, the court of appeals ruled, defense counsel “was hostile and unreasonable, and failed to display a sincere effort to resolve the discovery impasse,” and held that the trial court hadn’t abused its discretion in imposing the $12,600 in sanctions.

A lawyer who offered a witness $7,000 for his “honest testimony” was suspended for 35 days by the Nevada Supreme Court, after a state discipline board divided on whether a public reprimand was sufficient.

The opinion is a reminder about the limits of advocacy.

Truth is no defense

The lawyer’s client disputed a will. The lawyer sent a person, identified in the court’s opinion as D.E., a letter offering money “in exchange” for D.E.’s testimony that D.E. had never witnessed the decedent signing a will, and that the will he had witnessed was a fake.

In the several-page letter, the lawyer also threatened D.E. with personal liability and cited “the legal implications of perjury if D.E. didn’t disavow the will.”

A month later, the lawyer re-sent the letter in an e-mail, and reiterated the cash offer.

The hearing panel unanimously found a violation of Nevada’s Rule 3.4(b) (identical to the Model Rule), which prohibits offering “an inducement to a witness that is prohibited by law.” Here, the lawyer overstepped with the threat of a perjury accusation if D.E. didn’t execute the affidavit — that violated the state statute criminalizing extortion, the court said.

The lawyer argued that the will was in fact forged, and that the only testimony being solicited from D.E. was truthful.

The court shot that argument down, citing the Restatement of the Law Governing Lawyers, which emphasizes that the prohibition is against offering any consideration contingent on the content of the testimony. As an Illinois district court held, for purposes of the rule, it doesn’t matter if the testimony is “truthful or not.”

Not merely negligent?

Two of the three members of the hearing panel proposed that the lawyer merely be reprimanded, urging that the conduct was only “negligent.” But the court sided with the third panel member, finding that the conduct was intentional, and deserved an actual suspension.

This was no “casual comment in a courthouse elevator that an unnoticed witness accidentally overheard,” the court said. The court ruled that the letter and e-mail to D.E. showed that the lawyer intended the conduct, and the only negligence was perhaps in not recognizing that it violated the ethics rules. But ignorance of the ethics rules — like the law — is no excuse, according to the court.

Systemic costs

Interestingly, the pay-for-testimony deal never actually went forward — the court noted that, to the lawyer’s credit, the offer to D.E. was revoked after the lawyer talked to a law partner about “the ethical problems it posed,” and before any money changed hands.

While that helped prevent further harm, the court said, the lawyer’s conduct nonetheless injured the client because the trial judge excluded D.E.’s testimony and disqualified the lawyer after learning of the misconduct.

The misconduct also harmed the system itself, the court said, “fostering public cynicism [about] a system where fact witness testimony appears to be bought and sold.”

Take-home lessons

Getting suspended from practice is never a good thing — whether it’s for a month, as here, or for a longer time. But in the grand scheme of things, 35 days off is not terribly harsh, and there’s room to consider two mitigating points in this case that appear to justify the penalty.

First, based on the opinion, the lawyer was trying to elicit true testimony. The disciplinary opinion omits some details that would have explained why the lawyer could have thought it was necessary to offer money (was the witness reluctant? did the lawyer think the witness would be untruthful?), but the court seemed to accept that the lawyer was not trying to have the witness offer untrue testimony. Second, when advised that it was improper (and yes, the lawyer should have known that), the lawyer revoked the offer.

The court itself noted that the lawyer otherwise enjoyed a good reputation, and this was a first disciplinary offense.

A lawyer who was physically dependent on opioids and in an “opioid haze” was disbarred earlier this month for stealing more than $117,000 from a client. Her chronic pain and addiction were not “extraordinary mitigating” factors that justified departing from the presumptive penalty for client theft, the Washington Supreme Court held.

The decision is a stark reminder at a time when the ravages of lawyer substance abuse have been spotlighted in studies, books and current events.

Trust account theft

The lawyer had a family law practice and worked with one associate. In 2009, she agreed to represent a client in dissolving his marriage, took a $5,000 retainer and assigned the case to her associate, a recent law school graduate.

The court soon entered a dissolution decree, and awarded the client more than $117,000 as an equalization payment for his interest in the family house, which the lawyer put in her trust account.

The lawyer never paid the client. Instead, she moved her trust account to another bank, and eventually transferred all the money to her personal account. She used some of the funds to keep her practice afloat, but also for symphony and Mariners tickets, manicures, groceries, pet food and restaurants.

Most of the client’s many calls to the lawyer went unanswered. When the lawyer did respond, she said she had been sick and needed time to get back to the client about the funds. At the time, the client was destitute and sleeping on a friend’s couch while waiting for the settlement funds to help him get back on his feet.

In the meantime, the lawyer stopped coming to her office, and stopped attending to her practice. The associate registered her concern in an e-mail, citing the trust account irregularities and the “ethical conundrum.” In reply, the lawyer said that the associate had no responsibilities regarding the office’s finances, and purported to “relieve [the associate] of any ethical obligations regarding the firm’s financial business…” The associate soon left the firm. (A lawyer in such circumstances might need to consider whether Model Rule 8.3, “Reporting Professional Misconduct,” could be applicable.)

In 2014, the lawyer pled guilty to a criminal charge of first degree theft, and was sentenced to nine months of electronic home monitoring.

“Opioid haze”

The lawyer had been in successive car accidents in 2003, 2004 and 2006, and had developed chronic pain. After the lawyer unsuccessfully tried several pain management techniques, her doctor prescribed a variety of opioids in 2006; the lawyer started taking the medication in increasingly large amounts and became dependent.

In her disciplinary filings, the lawyer said that she was in an “opioid haze,” and that her chemical dependency caused her to “overlook the proper disbursal of the trust funds” to the client.

Evidence at the hearing depicted the lawyer’s personality changes. As her drug use mounted, she became chronically lethargic, “would pass out midsentence and was unable to complete simple tasks.”

The disciplinary hearing officer found that the lawyer had a physical disability due to her chronic pain; that she was chemically dependent; and that these two factors justified a three-year suspension rather than the presumptive disbarment penalty.

But the full disciplinary board — by an 11-0 unanimous vote — disagreed, and the state supreme court adopted the board’s recommendation of disbarment.

The court rejected the argument that the lawyer’s significant pain was an “extraordinary mitigator”: “We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals’ lives. Nevertheless, such pain does not excuse extreme lapses of an attorney’s moral judgment.”

And the court held that the lawyer’s chemical dependency, either alone or in combination, would not justify a sanction short of disbarment — even if the lawyer had been able to show that her opioid dependence caused her to steal client funds.

The court wrote that it has consistently found that alcohol and drug addiction are not extraordinary mitigating factors in cases involving client theft. Rather, the court said, despite her “opioid haze,” the lawyer was to some degree “culpable and responsible for her actions. At some point, she ‘chose the path’ that led to her misconduct.” The court refused to view the lawyer as an “innocent victim of forces beyond [her] control …. We must hold her responsible for the harm she caused to the real victim here [the client].”

Harsh result — or appropriate?

This was a tragic situation — for the client, whose money was stolen by the fiduciary who was supposed to protect his rights; and for the lawyer, whose professional life has now been foreclosed by a terrible lapse.

As a profession — and as individuals — we need to do a much better job of intervening in the chain of life events that led to the result in this case. Our failure to do so when we are aware of a situation like this makes us bystanders. Our obligation as humans demands more.

That may be the trend of the future in Biglaw, but a much more modest marketing effort recently landed an Ohio lawyer in disciplinary trouble.

No Justice, no peace?

According to the opinion, from 1981-1997, the lawyer in question practiced with another attorney, who eventually became (and continues to be) a Justice of the Ohio Supreme Court. Fast forward to 2015. With the permission of the Justice, the lawyer began using their old firm name, including on business cards, and hung a sign outside the office saying “O’Neill & Brown Law Office (Est. 1981).”

That only lasted for a few weeks before the local bar association began investigating. After the disciplinary authorities advised the Justice that the sign violated Ohio ethics rules, the Justice instructed the lawyer to remove his name from the sign, and eventually the lawyer did so.

False and misleading

The Ohio Supreme Court (with the Justice in question not participating) agreed with the Board of Professional Conduct that the firm name on the sign and business card, and the reference to the firm having been established in 1981 were false or misleading communications that violated Ohio’s version of Model Rule 7.1. The court also found a violation of Rule 7.5(c), which prohibits using a judge’s name in a firm name or other firm communication, unless the judge regularly and actively practices with the firm.

By a 4-3 vote, the court imposed a two-year stayed suspension on the lawyer. A significant aggravating factor contributed to the sanction: this wasn’t the lawyer’s first rodeo — he’d been disciplined several times before, according to the opinion, including a previous suspension for threatening a judge who served as chair of the local bar grievance committee. But in mitigation, the court noted that his conduct “did not involve the provision of legal services,” that no clients were harmed, and that the Justice participated in the decision to use the “O’Neill & Brown Law Office” name on the sign.

The three-judge minority would have imposed an “indefinite” suspension, which in Ohio is a term of at least two years.

Hot on the heels of the publicity for Brian Cuban’s new book, “The Addicted Lawyer: Tales of the Bar, Booze, Blow and Redemption,” comes the searing account in the New York Times of the 2015 death of a former IP partner at Wilson Sonsini Goodrich & Rosati, who secretly battled drug addiction and reportedly died of a bacterial infection that often afflicts intravenous drug users.

Cuban’s book (he is the brother of billionaire Dallas Mavericks owner Mark Cuban) is, by all accounts, a story of perseverance and recovery; Cuban redeemed his life, although he does not practice law any longer.

But the New York Times article, authored by the Wilson Sonsini partner’s ex-wife, is a harrowing call to arms about the need to do a better job — in the organized bar, in BigLaw, small law, corporate law and everywhere else — of identifying and helping addicted lawyers.

“Last call” — dial-in to a work conference

The Wilson Sonsini partner, identified in the NYT article only as “Peter,” is described as successful, driven and work-obsessed. After a stellar law school career, in which he graduated first in his class, he replicated that success in a legal career that saw him regularly working 60-hour weeks over the next 20 years.

His ex-wife, with whom Peter maintained good relations, found him dead on the floor in his house, near half-filled syringes, a tourniquet, and crushed pills. She had no idea that he was struggling with a severe addiction — reflected in detailed notes the lawyer kept of the times and amounts of his drug injections — although she writes that she noticed wild mood-swings in the months before his death, and voice mails consisting of “meandering soliloquies.”

Most poignantly, the lawyer kept working right up to the end. The last call he made from his cellphone, his ex-wife wrote, was to dial in to a work conference call, even though he was “vomiting, unable to sit up, slipping in and out of consciousness.”

At Peter’s memorial service, his ex-wife wrote, while a weeping young associate eulogized the partner he had come to know, firm lawyers were bent over their own cellphones, tapping out e-mails — unable to put down their work even then.

Grim statistics

The statistics on lawyers and alcohol abuse are grim, and well-known. More than a fifth of all lawyers are problem drinkers, according to last year’s joint report of the Hazelden Betty Ford Foundation and the American Bar Association Lawyers.

The statistically-robust report drew responses from 12,825 licensed and practicing lawyers from 19 states. But only 25 percent of respondents answered questions about drug use — out of fear of answering, according to the study’s lead author. Quoted in the NYT story, he said that “I think the incidence of drug use and abuse is significantly underreported,” because in contrast to alcohol use, drug use is illegal.

In his book, Cuban describes snorting cocaine in his former law firm’s bathroom, to keep going after boozing it up and using drugs the night before. Other memoirs, like “Girl Walks Out of a Bar,” by a former Pillsbury Winthrop lawyer, underscore the reality of lawyer drug addiction.

What is the profession doing to help?

Accounts like Cuban’s and the death of the Wilson Sonsini lawyer spotlight the need for the legal profession to step up its efforts to help. The ABA’s Model Rule on Continuing Legal Education calls for just one credit of CLE every three years on mental health or substance abuse.

Some states, like my home state of Ohio, have moved away from a specific substance-abuse requirement; since rule amendments in 2014, many subjects qualify to meet our “professional conduct” CLE requirement, so a lawyer never needs to have any substance abuse CLE.

Yet, in the days before that change was made, when lawyers still needed to get one hour of substance abuse training every two years, each time I spoke on ethics at a CLE seminar, I observed at least one lawyer going up afterwards to the person who had spoken on substance abuse, and speaking earnestly. These were lawyers in trouble — and we need to do more to help them.

Jurisdictions like Illinois seem to be moving in the right direction, as reported by Chicago ethics lawyer Allison Wood. Under amended rules, Illinois lawyers are now required to take one hour of mental health and substance abuse CLE as part of their six-hour professional responsibility requirement. Both the directive to have at least some substance abuse training, and the size of the PR requirement are laudable.

Law firms also have a huge role to play — there’s room to ask whether firm culture “enables” alcoholism. De-emphasizing the historic link between lawyering and drinking , including at firm events, would help. So would increasing access to law firm employee assistance programs, as highlighted in guidelines here, from Massachusetts “Lawyers Concerned for Lawyers.”

And as I have done before, here’s a state-by-state list of links to lawyer assistance organizations. No problem is ever made worse by seeking help.

Being inexperienced can contribute to getting into disciplinary trouble, but it can also be a mitigating factor in a bar disciplinary case. That’s the message of a recent opinion of the Oklahoma Supreme Court, which imposed a six month suspension from state practice as reciprocal discipline on a lawyer who had already been suspended from federal bankruptcy court practice for five years.

Raising the risk?

Something like 37,000 students likely graduated from law school this year; that’s a lot of newly-minted JD’s coming into the world of practice. And while they might know more about legal ethics when they graduate than they ever will again (as I tell the law students I teach as an adjunct ethics prof), it’s also surely true that simple inexperience can play a role in going astray and getting into disciplinary trouble.

For one thing, with the legal job market being what it is, many new lawyers will likely be hanging out their own shingles. There are lots of opportunities for a novice to get mentoring, advice, and hand-holding from more-veteran members of the bar.

But failing to take advantage of those resources can mean that an inexperienced solo lawyer is stuck in an echo-chamber, without the corrective that a more-seasoned viewpoint can contribute. And even in a firm, it’s easy to make a mistake if the proper supervision is lacking.

Sooner State of confusion

The lawyer in this disciplinary case was admitted to the Oklahoma bar and started practicing in 2013. About 18 months later, she got her first client — a couple who were attempting to set aside a bankruptcy court order.

Her attempt on the couple’s behalf went badly wrong, and then spiraled out of control: the bankruptcy court found the lawyer’s set-aside motion to be without any legal or factual basis; she missed the deadline to supplement the filing; and then she sued the trustee, the judge, the state courts of two counties and the layers representing the creditors.

The court dismissed that suit with prejudice, and the creditors moved for sanctions against the lawyer in the bankruptcy court, asserting among other things that she had filed frivolous litigation, misrepresented facts, and had threatened the bankruptcy trustee and attorneys with criminal prosecution in bad faith.

Before the sanctions hearing, the lawyer entered into a settlement, accepting a five-year suspension from practice in both Oklahoma bankruptcy courts.

Inexperience counts

It’s a little-known fact that drawing professional discipline in one jurisdiction where you are admitted to practice (including before federal courts), can bring reciprocal discipline in other jurisdictions where you are admitted. That’s what happened here.

In response to the state bar’s disciplinary charges, the lawyer creatively argued that because her bankruptcy suspension was a result of an agreed settlement and not an “adjudication,” there was no basis for reciprocal state discipline. The Oklahoma supreme court swept that argument aside, and held that her conduct violated the Sooner State’s versions of Model Rules 1.1 (competence); Rule 3.4 (unfairness to opposing parties and counsel; and Rule 8.4(d) (conduct prejudicial to the administration of justice.

But in weighing the appropriate reciprocal discipline, the court significantly took as a mitigating factor that the lawyer “was new to the practice of law and without supervision or training.” Without intending to hold “new legal practitioners to different standards from more seasoned lawyers,” the court nonetheless took account of the fact that the lawyer “was practicing on her own with little prior training or supervision and refused to ask for help.”

Thus, although acknowledging that the lawyer exceeded the bounds of zealous advocacy, and “displayed a lack of competency and insolence in the practice of bankruptcy law,” the court imposed only a six-month suspension from practice.

Don’t let this happen to you

If you’re a newbie, recognize the limits of your knowledge and get help. Don’t count on your inexperience to save you from harsh professional discipline; you don’t want to go there in the first place. If you practice by yourself, take advantage of all the formal and informal mentoring and training resources available via state and local bar associations and law schools.

We’ve written before about deposition conduct that crosses the line between valid advocacy and sanctionable misconduct. Here’s the latest example, in which a New York federal magistrate imposed sanctions on a defense lawyer for the City of New York, who interjected over 750 statements on the record, including more than 600 objections across 84 percent of the deposition transcript pages.

Deposition duel

The case arose after the plaintiff was arrested at work, held in jail and released the next day. The discovery trouble broke out at the deposition of one of the defendant police officers.

As described in the opinion, defense counsel’s conduct ran the gamut of obstructionist deposition tactics:

she instructed the witness not to answer at least 20 times;

she made speaking objections that suggested the answer to the witness — including objections that encouraged the witness to resist the question;

she objected to questions on the basis that they had already been asked and answered, even though they had not been answered;

she objected to questions on the basis of relevance, although that is an improper objection under Second Circuit law; and

she threatened to walk out of the deposition.

The lawyers called the judge’s chambers twice during the deposition. The first time, the judge’s law clerk instructed that objections should be short and concise “and there is really nothing else that needs to be said, other than ‘objection to form.'” The second time, the judge herself directed that any contested questions were simply to be marked in the transcript. But despite the calls to the court, defense counsel failed to curtail her objections.

Excessive objections = sanctionable conduct

The magistrate judge granted plaintiff’s motion for sanctions, ordered the city to pay reasonable attorneys’ fees and costs associated with the deposition, and gave plaintiff an additional shot at deposing the witness.

The judge noted that Federal Civil Rule 30(c)(2) mandates that deposition objections be stated concisely, “in a non-argumentative and non-suggestive manner,” and instructions not to answer are limited mainly to preserving privilege. Rule 30(d)(2) authorizes sanctions for impeding, delaying or frustrating the “fair examination of the deponent.” Bad faith is not necessary, and making an excessive number of unnecessary objections may itself constitute sanctionable conduct, as the Rules Advisory Committee notes provide.

The court held that defense counsel’s behavior “clearly impeded the progress of and unnecessarily extended the length of the deposition,” meriting sanctions.

Effect of Haeger ruling?

Curtailing deposition misconduct means that judges must be willing to penalize lawyers who cross the line. In April, the U.S. Supreme Court arguably made that prospect somewhat more remote, unanimously ruling that when based on the district court’s inherent authority to sanction bad faith discovery conduct, the amount of sanctions cannot be punitive, and must be tied to the costs and fees proximately resulting from the misconduct. That obviously limits the potential sting of sanctions for deposition misbehavior.

In the New York federal case, the basis of the court’s ruling was Rule 30(d), and not its inherent power, as in Haeger. And the court expressly said that its ruling didn’t require bad faith on the part of the sanctioned counsel. But the court still limited the amount of the sanction to the plaintiff’s fees and costs resulting from the deposition.

That is a measured response to conduct that derailed a deposition. In egregious cases, more is called for if the persistent problem of deposition misconduct is to be addressed effectively. Courts and bar associations can continue to extol the virtues of professionalism, but if more trial courts don’t become engaged and take forceful action against it, and courts of appeal don’t confirm that forceful action, discovery abuse will continue to undermine our justice system.

There should be a word that’s the opposite of “schadenfreude” — you know, that evocative German term that means “secret pleasure at another’s misfortune.” Maybe there is such a word, but the one I’m searching for would convey the sense of “Please, let me not fall into the same error” as some other person did, because under the right (or wrong) circumstances we can all make ethical mistakes. Here are three cautionary tales. You may read them and wonder how the lawyers involved came to such grief — or you may just be thankful that it wasn’t you, or that the demons these lawyers struggled with aren’t yours.

If you’re carrying meth, don’t forget your briefcase.

A Colorado lawyer left his briefcase in a courtroom overnight. The judge’s law clerk found it and identified the lawyer by looking at the documents in the briefcase. Unfortunately, as the disciplinary opinion describes, “a vial of white power and a syringe were also in the briefcase; a field test by courthouse deputies identified the power as methamphetamine.” The lawyer retrieved the briefcase later and identified it as his.

A month later, police responded to a domestic violence call at the lawyer’s home. His spouse told police that after the spouse found meth in the home and confronted the lawyer, the lawyer assaulted the spouse.

The lawyer also neglected clients in six cases, including leaving a client at trial without counsel, and failed to refund at least $7,000 in unearned fees, constituting conversion of client funds.

The court ordered disbarment for among other things, violating the state’s version of Model Rule 8.4(b), which makes some types of criminal conduct into ethical violations. The court said that it could not consider any mitigating factors, despite the circumstantial evidence of the lawyer’s difficulties, because the lawyer failed to participate in the disciplinary case.

If you’re driving, wear a seatbelt.

A California deputy district attorney and her co-worker got pulled over and received citations for the D.A.’s failure to wear a seatbelt. The D.A. called a family friend, a sergeant in the police department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer. The D.A. then told her co-worker to destroy co-worker’s own citation, but co-worker refused.

The D.A. was tried and found guilty of conspiracy to obstruct justice, and two counts of altering a traffic citation — all misdemeanors. The appeals court affirmed the conviction. And in an order that took effect in November 2016, the D.A. was suspended for 60 days, ordered to take the Multistate Professional Responsibility Examination, and placed on two years’ probation. In aggravation, the court found that the D.A.’s conduct damaged the integrity and credibility of the criminal justice system and the legal profession.

If you work at a firm, hand over the client fees.

A former partner in a Utah law firm worked on two client matters and directed that firm personnel write off some or all of the fees. The client in each matter did construction work at the partner’s home: one built a shed worth more than $15,000 and had all his legal fees written off and his retainer refunded; one built a railing for the partner, received $3,500 in cash from the lawyer for the work, and had more than $7,000 in legal fees written off, with the firm receiving just $700.

Each client testified that he had a deal with the lawyer to provide construction work in exchange for the lawyer’s legal services.

The district court concluded that the lawyer had violated the state’s version of Model Rule 8.4(c), barring dishonesty, fraud, deceit and misrepresentation.

As a sanction, bar counsel argued for disbarment, which is the presumptive sanction for misappropriating funds. The lawyer argued that misappropriating funds from his law firm didn’t rate the same sanction as stealing from clients, and on its review, the state supreme court agreed, in an opinion suspending the lawyer for 150 days.

The court wrote that “that not all misappropriation is created equal. Misappropriation of firm funds does not ‘undermine the foundations of the profession and the public confidence’ in the same way that misusing client funds does,” and does not merit the same presumptive sanction.

Be careful out there

Takeaways? (1) If your friend, associate or law partner is grappling with addiction or any other brain disease or mental health issue, reach out to your state’s lawyer assistance program. It just might save their life, in addition to their license. A list of every state’s program is here. (2) Keep your moral compass in front of you at all times. And, oh yes: (3) Buckle up when you’re behind the wheel.

You may have some holiday leftovers lurking in your fridge (potato latkes, Xmas goose, black-eyed peas, New Year’s Eve caviar), and we too have some interesting ethics topics that we didn’t have room for during 2016 — so here’s a potpourri, touching on positional conflicts, coercive settlements and maybe how not to use your firm’s letterhead.

Arguing damage caps, pro and con

The U.S. district court for the Middle District of Tennessee in October turned back a disqualification motion aimed at Butler Snow, ruling that the firm could continue representing a personal injury plaintiff who was potentially contesting the constitutionality of the state’s punitive damage caps, while at the same time asserting the caps defensively in at least one pending case for another client.

In its DQ motion, the trucking company defendant said those positions were inconsistent and raised a positional conflict in violation of Tennessee’s version of Model Rule 1.7 and its cmt. [24].

Not so, said the district court. First, the trucking company waited until two months before trial to try to disqualify the law firm; it would cause severe prejudice to the plaintiff if she had to find new counsel. Second, the firm retained separate counsel to represent the plaintiff on all post-trial issues challenging the damage caps, an arrangement that plaintiff agreed to at the beginning of her representation. Third, there was no evidence that the potential conflict had actually affected the injury case, or was likely to compromise the firm’s representation of clients who simply asserted the caps to limit their liability rather than expressly defending their constitutionality.

On all these bases, the court held, the firm could stay in the case, part of which has now been settled.

Threat to publicize sexual allegations

In November, an Arizona lawyer who threatened to use press releases to alert the public to sexual allegations in order to obtain a settlement consented to a 30-day suspension.

In 2015 the lawyer filed a federal sexual harassment complaint on behalf of a client. In a letter to the defendant, he announced he had created a specific website regarding the allegations, and said he would put up a public “shame on you” banner near the defendant’s restaurants. He also told the defendant that he had scheduled meetings with police and the federal Department of Justice about the alleged hiring of undocumented workers. In response to a settlement offer, the lawyer told the defendant’s lawyers that he “intended to destroy” the defendant’s businesses.

The judge in the federal case insisted that the lawyer stop his unprofessional behavior; the parties settled; and the state Disciplinary Judge accepted the lawyer’s admission that his conduct violated Arizona’s versions of Model Rules 4.4 (respect for the rights of others) and 8.4(d) (conduct prejudicial to the administration of justice). The lawyer also agreed to two years probation and to pay costs.

The rules in my home jurisdiction, Ohio, include Rule 1.2(e), a specific prohibition against threatening criminal charges or professional misconduct allegations solely to obtain an advantage in a civil matter. Interestingly, the Model Rules lack an express prohibition, although this case illustrates that disciplinary authorities can get there via other rules.

Using firm letterhead

Last, here’s a cautionary tale about using your firm letterhead for a personal legal dispute.

According to plaintiffs in a federal complaint filed in November, a Pepper Hamilton partner entered into a lease-to-own deal with a couple for a $750,000 house he owned. The couple terminated the contract and moved out, and the lawyer claimed that they owed about $10,000. The lawyer sent a demand letter for the money in September, using the firm’s letterhead.

That drew a suit from the couple against both the lawyer and the law firm for allegedly violating the federal Fair Debt Collection Practices Act. “Once [the lawyer] sent the Sept. 19 letter … on [the firm’s] letterhead, he was no longer acting as an individual collecting his own debt, but rather a debt collector subject to the FDCPA,” the couple said in their complaint.

It remains to be seen whether that theory will fly — the case docket does not yet reflect any response to the complaint. But it points to an issue that you should probably think about in your personal dispute before putting a piece of firm stationery in the printer.

Alaska may have only about 2,500 active resident lawyers, but its bar ethics committee has become just the second authority in the country to weigh in on the practice of “bugging” the e-mail of opposing counsel. The committee disapproved of this spy method in an opinion issued in late October, saying that it violated the Last Frontier’s version of Model Rule 8.4, which prohibits dishonesty and misrepresentation.

Don’t let this bug you

A “web bug” is a tracking device consisting of an object embedded in a web page or e-mail, that unobtrusively (usually invisibly) reveals whether and how a user has accessed the content. Other names for a web bug are web beacon, pixel tracker and page tag.

I had never heard of web bugs before, but apparently they are universal in the Internet world, enabling e-newsletter editors, for example, to get metrics on how many readers open the newsletter, and what pages they look at. But web bugs can be used for less benign ends, including getting a leg up on opposing counsel.

As described by the Alaska opinion, web-bugging involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail. “The image may be invisible or may be disguised as a part of the document (e.g., part of a footer.) When the recipient opens the document, the recipient’s computer looks up the image and thereby sends certain information to the sending party.”

The information available from a web bug is wide-ranging, including:

when and how many times the e-mail was opened

how long it was reviewed (including whether it was in the foreground or background)

whether the recipient opened attachments

how long the attachment or a particular page of the attachment was reviewed

whether and when the e-mail and/or attachment was forwarded

the approximate geographical location of the recipient

Web bugs are different than meta-data (which has been the subject of many ethics opinions). Meta-data is automatically a part of documents created with word-processing programs, unless the user scrubs it. In contrast, bugging e-mail that you plan to send requires an affirmative act.

According to the opinion, web bugs operate surreptitiously, and “it cannot be said with any assurance that [existing] detection programs will be consistently effective” in detecting them.

“Unwarranted intrusion”

The Alaska ethics committee determined that using web bugs to track e-mail sent to opposing counsel “impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets,” and it represents an “unwarranted intrusion into the attorney-client relationship.”

For instance, knowing how long and how often your opposing counsel has viewed a bugged e-mail can unlock information on how important the communication is deemed to be. In litigation, a web bugged document could provide valuable insight on which pages of a settlement agreement got the most attention. “This gives the sending lawyer access to attorney-client protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important,” the committee concluded.

Using technology to accomplish such purposes, said the committee, violated Rule 8.4 even when its use is disclosed and not surreptitious.

It should be self-evident to any lawyer who has taken a law-school ethics course or an ethics CLE that bugging e-mail sent to opposing counsel is dishonest. As technology offers more ways to obtain an improper advantage over an opponent, ethics regulators will play Whack-a-Mole in finding those methods to be unethical. But it’s discouraging that such efforts are even needed.

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